While the adult industry and those who love it revel in the recent Sixth Circuit U.S. Court of Appeals’ ruling that the government’s blunt force 2257 statute is unconstitutional, proclaiming victory against the Department of Justice’s current campaign against adult content may be a bit premature.
That’s because this isn’t the first time the Department of Justice has been spanked for trying to bully the adult industry with this anti-lifestyle legislation disguised as child protection. Don’t blame <i>this</i> administration, though – it was under the Clinton administration that 2257 first failed to pass constitutional muster.
Some monitoring the case have expressed an optimism bordering on glee at the decision. Salon’s tech blogger Machinist popped a boner the size of the Empire State Building.
“Hallelujah!” he wrote. “Haul out your 8 MM, put on some lounge music, get your partner — and maybe a gaffer, some stage hands, a caterer, a boom operator and your parents, who’ll be so proud — and get down! The 6th Circuit Court of Appeals has just ruled that you are free to make your own porn. Believe it or not, this is a major First Amendment ruling, one for which much praise is due.”
Digital rights pundit Declan McCullough said, “Tuesday’s ruling is a remarkable win for adult publishers, not just because of the weighty nature of the regulations but also because the lawsuit has been going on for so long. The case was originally filed in September 1995, and this is likely going to be the last word unless the U.S. Supreme Court gets involved.”
I wish I could be so blissfully ecstatic, but what’s funny is that the fact this has gone on for so long without any real consequence, despite previous major court rulings, inspires the completely opposite reaction in me. That is, quiet despair and skepticism.
In 1998, Sundance and Associates, which among other things produced a series of print magazines which ran explicit classified ads, much like the Ohio magazines involved in last week’s Sixth Circuit decision, sued Janet Reno, insisting that 2257 failed to prove that by running these ads, Sundance was their “producer.”
The language in 2257, once slighted by the Tenth Circuit court as being “poorly drafted and should never be used as a model of the English language” and the Sixth Circuit found “overbroad,” is presently worded so that the naughty photo of you and your partner stored on your iPhone qualifies you as a producer of adult content. So when jolly old Sundance owner Bob Tremont found himself in the precarious territory of criminal liability for helping rotund Minnesotans make valuable human <i>ConneXions</i> (the title of one of Sundance’s swinger mags), he fought back.
The case ended up in the Tenth Circuit court, which ruled in favor of Sundance. However, this ruling was never put to the test, as the DOJ never launched the inspections many producers feared they would. Instead, content providers ranging from hardcore porn sites to internet dating services either continued to take great care in creating and keeping detailed records, or took their chances in fear of federal prosecution under a statue that has the words “child pornography” in its title, many assuming it remained intact and unchallenged.
In 2005, Senators Hatch and Brownback overhauled the statute to address new technologies of production (like the interweb), with the “secondary producer” language remaining. At that point, renowned trade organization and constitutional crusaders the Free Speech Coalition sued the DOJ, siting the previous <i>Sundance v. Reno</i> decision.
While it’s unknown the extent to which producers have struggled to adhere to the current incarnation of the 2257 statute, the wave of fear it has produced is tangible within the industry. Attorneys for some websites, many unfamiliar with 2257’s storied history, have cowered under the threat of inspection, choosing instead to change their sites in an overreaction to avoid scrutiny.
Which is why the government will most likely stall the process of judicial review of 2257 as long as it can. After all, it’s already taken two years just to get to this point, and if this administration knows the statute is eventually doomed, its best interests are served by preserving the inevitable.
Until the highest court in the land puts the beatdown on this unconstitutional statute, the chilling effect of possible prosecution will continue to be felt in what has become the vanguard of the fight for free expression – the adult entertainment industry.
And even if you don’t have an entire wing of your estate dedicated to the canon of Ron Jeremy, history has proven it unwise to encourage the persecution of one group, lest that group contain <i>you</i> at some point. Especially with that iPhone photo we talked about earlier.
Perhaps the most perverse element of 2257 is that, by using it as a blunt instrument by which to attack <i>all</i> adult content, it fails on the premise of it being a weapon against the creation and distribution of child pornography.
When the statute was first passed almost 20 years ago, both the porn industry and the DOJ were still smarting from the whole Traci Lords debacle, wherein it was revealed the starlet had been working in the industry well before her 18th birthday. And while the millions in lost revenue from the loss of her catalog was fair evidence that the studios had been fooled by Lords’ fake ID (and a talent well beyond her young years), the government, as governments are wont to do, nevertheless leapt at the chance to regulate an industry that they loathed.
So currently, even titles that feature 70-year-old women and well-worn former fluffers engaged in carnal knowledge that nobody with half a brain would confuse with kiddie porn must keep detailed records of all involved in case dark-suited FBI agents invade the Chatsworth office where such things would be kept. In their unanimous decision, the three judges of the Sixth Circuit also noted this tragic failure of 2257 to protect children when concentrating on material so obviously outside this scope.
“This is one of the arguments that FSC has been asserting all along and that we will continue to carry if necessary,” said Reed Lee, FSC board member and Chair of FSC’s Legal Committee.
Of course, the court’s decision is by no means the last word on 2257, and Lee stated the government will most likely make its next move in the coming weeks.
Of its options, the DOJ could request the Sixth Circuit review its decision, or it could ask the Supreme Court to take up the case. It could also rewrite the statute to address the concerns expressed by the courts, although of the three justices on the Sixth Circuit, only one of them thought “portions of the section can be judicially salvaged.”
In a press release, FSC expressed cautious optimism while anticipating what’s next. “Even if the present version of Section 2257 is rejected by the courts on constitutional grounds, Congress can always try to rewrite the statute to cure its defects. Given the decision yesterday, that would not be easy to do and might not result in anything like the burdensome record-keeping requirements now on the books, but we must remain vigilant against efforts to revive Section 2257 legislatively.
“Fortunately, the Free Speech Coalition has worked hard over the past few years to be in a position to influence events in Congress as well as the courts. Our efforts there may not always be high-profile, but we are confident that we are in a position to be heard on policy issues as we never have before.”